Figel’ v Slovakia: Potential landmark ECtHR decision on COVID-19 related restrictions to FoRB
The COVID-19 pandemic introduced a period of unprecedented restrictions to fundamental rights, unthinkable no less than five years ago: freedom of movement, assembly, and expression, and the right to private life, among others, were all impacted.
Freedom of religion or belief (FoRB) was no exception. In the name of public health, governments all around the world closed church doors and forbade in-person worship. In some places, churches remained closed even when other establishments such as bicycle repair shops and cinemas were open for business (e.g. Scotland and Switzerland).
While many may want to put the pandemic behind them, violations of human rights should be corrected, at the very least so we can prevent them from happening again. In the case of FoRB, the ECtHR now has the chance to do exactly that.
Ján Figeľ, the former Special Envoy for FoRB outside the EU (2016-2019), and a practicing Catholic, is challenging before the ECtHR the COVID-19 related restrictions to religious worship imposed by his home country, Slovakia, starting from February 2021. I have the honour of co-representing Figeľ before the ECtHR in a potentially precedent setting case for how the 46 member states of the Council of Europe should deal with FoRB in times of public health crisis.
Scope of the case
During the second wave, Slovakia prolonged its pandemic restrictions, banning religious services, except for baptisms and weddings with up to six people. The case centers on the 40-day prolonged blanket ban on religious worship (8 February-19 March 2021), which transpired amidst a longer period of previous restrictions.
The government of Slovakia contends there was no violation of FoRB because:
individual worship was still possible. But such an argument is contradicted by international and European human rights law, which protect FoRB manifested either alone or in community with others.
“online worship” was available. This claim disregards the fact that this is “best viewed as an alternative to worship, rather than worship itself” (Reverend Dr William J U Philip and Others, paras. 60-61), and that for some faiths, such as Judaism, religious celebrations cannot be filmed or livestreamed (Belgian Conseil d’État arrrêt n° 249.177).
The case rests on the ECtHR’s analysis of proportionality and necessity, and the margin of appreciation Slovakia had at that particular time.
At the start of the pandemic, due to the novelty and lack of knowledge about the virus, governments had a wider margin to curtail fundamental rights. This gradually shrank with increased scientific information. Freedom-restrictive measures that might have been deemed legitimate at the beginning of 2020were likely not proportionate and necessary in 2021 and 2022.
In advancing a justification for restricting FoRB, the onus is on Slovakia to prove proportionality. In this case, the government’s blanket ban on religious worship during the later stages of the pandemic, once more scientific evidence became available, was at best a “useful” form of restrictions, though certainly not the most useful and “necessary”.
The government also must show that the ban was the least restrictive means available, which will be difficult in light of other options, such as social distancing within churches or other measures recommended by the WHO.
A precedent for FoRB at the ECtHR
While the ECtHR has dealt with applications related to FoRB during the pandemic (such as Magdić v Croatia, which was declared inadmissible, or Spînu v Romania in which no violation was found in the prison context), it has not yet ruled on the proportionality of bans on public worship, and certainly not with regards to the second wave of the pandemic. There are at least three noteworthy cases pending (Mégard v France, Chirilă v Romania and Association d’Obédience Ecclésiastique Orthodoxe c. Grèce ) and the timeline indicates that Figel may be the first case where the ECtHR will assess the proportionality of worship bans during COVID-19. Should the Court do so, it would take the symbolic opportunity to rule on the case of the former Special Envoy for FoRB, who has repeatedly stated that “The EU cannot credibly advance religious freedom throughout the world if its member states fail to uphold fundamental freedoms at home.”
Adina Portaru serves as Senior Counsel for ADF International, where she focuses on freedom of religion or belief at the European Union and on litigation at the European Court of Human Rights. Prior to joining ADF International, she was a research assistant at Maastricht University in the Netherlands and at the European Training and Research Centre for Human Rights and Democracy in Austria, where she assessed human rights policies. She obtained her doctorate in Law and Religion at Karl Franzens University in Austria.